Opinion
10-P-1793
12-01-2011
COMMONWEALTH v. JORGE LOPEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of cocaine trafficking in a school zone, distribution, conspiracy, and possession of a false motor vehicle document. On appeal, he argues (1) that the Commonwealth failed to prove trafficking in a school zone, and (2) that a police officer's expert testimony created a substantial risk of a miscarriage of justice. We affirm.
1. Trafficking in a school zone. Ashland police Officer Robert Araujo received a radio call to pull over a white Ford van driven by the defendant. Officer Araujo was instructed to do so after a series of controlled buys in which the police witnessed the defendant pick up an individual, drive in a large loop and drop the individual back to the pick-up location so that same individual could sell cocaine to an undercover police officer. Once pulled over, the van was towed to the Ashland police department. The van was pulled over less than 100 feet from William Pittaway School. During a search of the van, police found a compartment under the passenger seat that contained a canvas bag with thirty-two bags of cocaine.
Officer Araujo found $270.00 of buy money in the defendant's coat pocket.
The defendant argues that because he was simply stopped in the location of a school zone and not actually distributing cocaine in that location, there was not enough evidence to support a conviction under G. L. c. 94C, § 32J. We disagree. In Commonwealth v. Roucoulet, 413 Mass. 647 (1992), the Supreme Judicial Court stated: 'One contaminating these safety zones is liable, regardless of whether he or she intended to infect those here or others elsewhere.' Id. at 651, quoting from State v. Ivory, 124 N.J. 528, 585 (1991). The court also specifically held that 'a violation is made out if a defendant is shown to have committed one of the enumerated acts that constitute crimes under G. L. c. 94C 'while in or on, or within' 1,000 feet of a school.' Id. at 650. 'Section 32J is a strict liability crime that does not require the Commonwealth to prove that the defendant intended to distribute the drugs within the school zone, only that he possessed them within the school zone with an intent to distribute them somewhere.' Commonwealth v. Cavanaugh, 63 Mass. App. Ct. 111, 114 (2005). The Commonwealth proved beyond a reasonable doubt, and the defendant concedes, that he was guilty of trafficking. Because he was inside a school zone, no more need be said.
2. Police officer testimony. The defendant next argues that there is a substantial risk of a miscarriage of justice due to the testimony of Detective Hyde regarding his knowledge of the drug trade. Specifically, the defendant claims that Hyde's testimony amounted to profile evidence. We disagree. Detective Hyde testified solely as an expert witness, and not a percipient witness. See Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 582 (1998); Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 456 n.5 (2006). 'The role of an expert witness is to help jurors interpret evidence that lies outside of common experience. . . . So long as expert testimony is directed to that purpose, it is admissible.' Tanner, supra at 581 (citations omitted).
Furthermore, Detective Hyde did not impermissibly comment on the defendant's innocence or guilt. See ibid. He did not say whether the defendant's actions constituted illegal activity, but rather used his years of experience to educate the jury on knowledge outside their purview. Detective Hyde 'did not comment on the defendant's activity directly, . . . but more generally on the meaning of the quantity of the cocaine in question.' Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 907 (1999). See Commonwealth v. MacDonald, 459 Mass. 148, 161-163 (2011) (no error in nonpercipient officer testimony that hypothetical factual circumstances similar to facts in case were consistent with a drug transaction). Because Hyde's testimony did not constitute error, there is no risk that justice miscarried.
Judgments affirmed.
By the Court (Grasso, Smith & Meade, JJ.),